Institutional Equity

Disability

Federal and state laws protecting people with disabilities are largely regulated by the Americans with Disabilities Act of 1990 (ADA). The Act extends civil rights protections for individuals with disabilities to employment in the public and private sectors, transportation, public accommodations, services provided by state and local government, and telecommunication relay services.

Public institutions of higher education are impacted by ADA because the Act upholds and extends the standards for compliance set forth in Section 504 of the Rehabilitation Act of 1973 to employment practices, communications, and all policies, procedures and practices that impact on the treatment of students with disabilities. Employment issues for all institutions are covered under Title I. For all activities, public institutions are covered under Title II; private institutions are covered under Title III. Disability access to institutions of higher education focus includes the whole scope of the institution’s activities, including programs, facilities and employment.

The Equal Employment Opportunity Commission (EEOC) and the Department of Justice are charged with the enforcement of ADA.

The ADA applies to all institutions of higher education regardless of receipt of Federal funds. The Rehabilitation Act prohibits discrimination on the basis of disability in programs that receive Federal financial assistance. The Rehabilitation Act standards mirror those of the ADA.

Under ADA, a “person with a disability” includes any person with a physical or mental impairment that substantially limits one or more major life activities. An individual is considered to be a person with a disability if he/she (1) has a disability, 2) has a history of a disability, or (3) is perceived by others as having a disability.

Employers are, hence, required to make reasonable accommodations to known physical and/or mental limitations of an otherwise qualified job applicant or employee with a disability, unless doing so would impose an undue hardship on the business of the employer.

Section 504 of the Rehabilitation Act of 1973 states that:

“No otherwise qualified person with a disability in the United States…shall, solely by reason of…disability, be denied the benefits of, be excluded from participation in, or be subjected to discrimination under any program or activity receiving federal financial assistance.”

A “qualified person with a disability” is defined as one who meets the requisite academic and technical standards required for admission or participation in the postsecondary institution’s programs and activities or employment position.

Section 504 and the ADA protect the civil rights of individuals who are qualified to participate and who have disabilities such as, but not limited to the following:

Blindness or visual impairments
Cerebral palsy
Chronic illnesses, such as:
- AIDS
- arthritis
- cancer
- cardiac diseases
- diabetes
- multiple sclerosis
- muscular dystrophy
- psychiatric disabilities
Deafness or hearing impairments
Drug or alcohol addiction (Section 504 covers former users and those in recovery programs and not currently using drugs or alcohol.)
Epilepsy or seizure disorders
Mental retardation
Orthopedic impairment
Specific learning disability
Speech disorder
Spinal cord or traumatic brain injury

Recent Supreme Court rulings, e.g., Sutton v. United Air Lines, Murphy v. United Parcel Service, Albertsons v. Kirkingburg, Bragdon v. Abbot, seemingly provide a broad interpretation of the law which could very well appear to limit who is protected by the statute. EEOC Chairwoman Ida Castro commented following the Supreme Court’s rulings in Albertsons, Sutton and Murphy that the rulings “appear to significantly narrow the scope of those covered under the ADA, but the Court affirmed EEOC’s standard of an individualized approach to the assessment of coverage.” She added, the Court “clearly stated that people who use mitigating measures may still be substantially limited in major life activities and thus may enjoy the protection of ADA.” Nevertheless, she further indicated, “the Court did not suggest that any conditions were automatically excluded from coverage nor did it disturb the principle that employers are required to provide reasonable accommodations for employees with disabilities and may not otherwise discriminate against them.”

From all indications, ADA does not discuss mitigating measures in itself. Therefore, although the Court’s decisions provide additional guidance in determining whether a person has a disability, it has not made it any easier for interpretation of the law in regard to terms such as “impairment,” “major life activity” and “substantial limitation.”

Further, based on the Court’s recent rulings, it is quite clear that the EEOC’s position is that a disability should be determined without making reference to mitigating measures. For example, in the EEOC’s Revised Guidance to field offices, it instructs the agencies that the list of major life activities in it’s regulatory and enforcement guidelines is inclusive [“not exhaustive”]. To paraphrase, the agencies were instructed to use the following criteria to assess disability coverage.

Determining whether an individual has a disability will be made on a case-by-case basis.
Determining whether an individual has a disability will be based on the person’s actual condition at the time a complaint of discrimination is filed, and any speculation of whether the person had been substantially limited even it she or he used a mitigating measure is irrelevant.
An individual may be substantially limited in a major life activity, even with the use of mitigating measures.

The College Students With Disabilities Resource Guide for Faculty and Staff, Western Michigan University, provides a more thorough review of disabilities which are determined on a case-by-case basis.

For more information on the topic of disability, please refer to the following links.

For additional resources at Western Michigan University, refer to the following:

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